Rafter-rancher conflict makes for troubled waters

by Shannon Livick | November 1, 2013 5:30 pm

Tom Wolfe sits on the banks of the Dolores River outside his home while discussing the closure of his business, Soft Adventures Rafting. Wolfe said the closure of his business is because of ambiguous laws and a property owner who has erected fences across the river and threatened to sue him for trespassing. The owner, Bruce Lightenburger, has said he has the right under state law to put up fences and to keep rafters off his property, but he is reportedly working with a local boating group to solve access problems. Photo by Shannon Livick

If river water runs through anyone’s veins, it’s those of Tom Wolfe.

Wolfe, 49, of Dolores, has spent 25 years rafting rivers in four different countries, logging an impressive 100,000 river miles. [Disclosure: Wolfe’s partner, Janneli F. Miller, contributes articles to the Free Press.]

“When I first started, it was the thrill of running rapids,” Wolfe said with a smile recently, sitting on the bank of the Dolores River outside his home on a warm fall day.

But it didn’t take long for his trips to be about more than the adrenaline rush. Soon, they were about the beauty and the tranquility of the river.

Wolfe also saw the effects on other people and how a little trip down a river could transform them.

“I saw what a transformation even 20 minutes on the river would do. It would lift their spirits and there would be a spring in their step,” Wolfe said.

So two years ago, Wolfe opened Soft Adventures Rafting in Dolores. He took locals and visitors up the Dolores River in a white van and down in rafts or tubes.

“I felt it was a way to contribute to society, to help people have that feeling of peace and tranquility,” Wolfe said.

But instead of gearing up for next season and religiously checking weather in hopes of a massive winter snowfall (which would equal an impressive run-off season), Wolfe is posting for-sale ads, waiting for calls back from other raft guides interested in buying his business piece by piece.

Wolfe didn’t have it easy. When he opened his business in 2012, the spring runoff was less than impressive and the winter that followed was also lackluster. But shutting the doors of Soft Adventures Rafting has more to do with a legal matter that has left Colorado river guides, including Wolfe, scratching their heads – and some locals literally pinned under water.

Wolfe blames the business closure on one landowner on the upper Dolores River that “feels he owns the river” and has stretched fences across the river, reportedly trapping and injuring one person this year and nearly injuring others.

But others say that ranchers along the small Dolores River have the legal right to turn rafters away and string fences, and that the boaters are the ones at fault.

The ongoing dispute, snared in conflicting federal and state laws, pits rafters and property owners against each other.

“We are a small mom-and-pop establishment. It doesn’t take much to shut us down,” Wolfe said. “In my opinion, this hurts Dolores. I took hundreds of people for their first time down this river. It was so neat to see all those smiling faces.”

A battle is brewing over the upper Dolores River and whether boaters can use it to cross private land. The battle, which pits property owners against rafters, hinges on questions involving federal and state law and whether the Dolores River is considered “navigable.” Photo by Shannon Livick

But barbed-wire fences stretched across the river and the threat of lawsuits for trespassing quickly sank a business aimed at showing off the beauty of the river.

“We don’t have the desire to spend time focusing on negative things,” Wolfe said.

Close call

John Baker moved to Dolores just over a year ago and loves running his raft whenever he gets the chance, something he has done on other rivers for over 13 years.

So when the water rose this year after a rainstorm in early August, he was excited to spend the day on his raft with his 5-year-old daughter.

But a relaxing float down the beautiful river quickly turned dangerous.

“I had boated the river all summer long and out of nowhere there were two barbed-wire fences strung across,” Baker said.

Fortunately, a friend of Baker’s had tagged along that day and Baker saw the fences before it was too late. Baker said his friend was able to push down the first fence while he floated over it and he was able to lift the second fence up while he floated under it. His oars still got tangled in the fence.

“It was a sketchy situation,” Baker said. “I don’t know what I would have done if I had been out there by myself.”

Baker said the incident left him shaken. He called the Montezuma County Sheriff ’s Office but was told there was nothing they could do because the landowner, in this case Bruce Lightenburger, had the right to erect the fences to contain his cattle.

“He doesn’t own the water,” Baker said. “They are not going to keep me off the water.”

Baker said he is concerned about the fence. “If someone were to get hurt there, something would be done quickly. I hope that is not what it takes,” Baker said.

But Baker also admitted that this isn’t a problem just in Dolores.

“It is a problem across the state,” he said.

‘A property issue’

According to Dick Bratton of Hoskin, Farina & Kampf, Lightenburger’s attorney, a rancher has every right to put up a fence on his property and those who raft through his property are trespassing.

“The law is very clear,” Bratton said. “Rafters do not have any right to cross private land.”

Bratton said the argument comes down to whether or not the Dolores River is navigable. He said that at the time Colorado gained statehood, 1876, the river had to have been used for commerce, and if boats weren’t going up and down the river for commerce at that time, the river is deemed non-navigable, giving landowners the right to the river.

“Who owns the water has nothing to do with it. It’s a property issue, not a water issue,” he said.

Bratton said his client only puts up fences to keep his cattle in and has been very amenable to working with the rafting community.

“He is bending over backwards to help people,” Bratton said.

Eric Leaper, executive director of the National Organization for Rivers, sees the law differently. The National Organization for Rivers, headquartered in Colorado Springs, is a nonprofit dedicated to educating river users about their rights.

“It is a huge national issue,” Leaper said.

Leaper said that federal law gives river-users easements, even if a river crosses private property, and that fences across rivers are therefore illegal.

“Those fences are a violation of federal and state law,” Leaper said.

The organization’s website is filled with literature that supports the right to float down a river and walk along its banks. Leaper also added that it doesn’t matter if the river is navigable or not.

“Most rivers aren’t designated, but they are still legally navigable,” he said. “It is not a matter of designation. It is federal law…it applies in all 50 states.”

Legal rights

Papers served to Wolfe and his rafting company on behalf of lawyers representing Bruce Lightenburger state that the Dolores River is non-navigable, that Lightenburger has the right to collect rental payments, and that the beds and banks of the stream belong to the landowner.

“The test for whether a stream is navigable is its condition at the time of statehood. A stream is navigable only if it was ‘navigable in fact’ at that time. Navigability is determined by whether the stream was used for ‘trade or travel’ at the time of statehood,” the letter from Hoskin, Farina & Kampf said.

The firm has threatened lawsuits against Wolfe for trespassing and allegedly removing the fence.

“This issue has been popping up everywhere,” Wolfe said. “It’s the difference between state and federal law. If I had millions of dollars, I would take it to court because it is not just about me, it’s about our rights.”

In a letter to his customers posted on Facebook in October, Wolfe wrote, “Sadly, the demise of the local raft shop in Dolores is due primarily to the efforts of one property owner living on the Upper Dolores who believes he owns the river. This property owner threatened us with arrest, hired a lawyer to sue us, and demanded that we pay him a huge sum to float on the river through his property.”

The letter from Lightenburger’s attorney proclaimed the Dolores River non-navigable, although it has not been designated either way.

“The Colorado Supreme Court … ruled that the ownership of the non-navigable stream by the adjacent rancher included the right to control the use of the stream and to deny passage to the rafters. Because they did not have consent to use the stream from the adjacent landowner, the rafters were trespassing.”

The letter also stated that Wolfe has “no right to remove the fence.”

That fence nearly killed a local man, Craig Lyons, according to his friend, Darby Dettloff.

The two rafted the river when rains brought flows up in September. Lyons was on a stand-up paddleboard, Dettloff said.

“The top layer of barbed wire was just under the water,” he said. “He got caught up in the fence and his head was under water for a long time.”

But just when Dettloff was about to jump in to try to save his friend’s life, Lyons was able to free himself.

“He had cuts and gashes, but he was as white as a ghost and in shock. His cuts weren’t even bleeding,” Lyons said.

Watching closely

Lee-Ann Hill, program coordinator for the Dolores River Boating Advocates, a newly formed group, said they have been watching the dispute closely.

“We have definitely been very concerned on this issue,” she said.

But their board has not taken an official stance.

“It is a very serious situation and it becomes such a legal situation and we are turning to the legal eagles on this,” she said.

In the meantime, the group has contacted Lightenburger, who was reportedly willing to work with them to allow passage by noncommercial rafters and to establish a boater fence, which would be made with PVC and would be safer for boaters than a wire fence.

Lightenburger could not be reached for comment.

Wade Hanson, president of the Dolores River Boating Advocates, said the issue will likely be discussed during the group’s Nov. 12 board meeting (see doloresriverboating. org for time and location of the meeting.)

According to Hanson, the river is navigable because it is currently navigable.

But there is no good, clear, simple answer, he added.

“Navigable rivers are in the same category as public roads. You can’t put a physical barrier across a public road, but in this case there is a difference in opinion as to whether or not the Dolores River is a navigable river.”

A public hearing on proposed changes to the Dolores River Valley Plan that had been scheduled for Nov. 4, then Nov. 12, has been postponed while the Montezuma County commissioners take input on the current setback rules and the system of transferable development rights in the valley. A survey is on the county’s web site at www.co.montezuma.co.us under “Special County Interests.”